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The European Court of Justice has ruled that the following benefits should be paid to people who move from the UK to another country within the European Economic Area. The benefits are:
• the care component of disability living allowance (DLA)
• attendance allowance (AA)
• carer’s allowance (CA)
EC regulation 1408/71 allows the exporting of certain benefits for EEA nationals who are employed or self employed, as well as to members of their families, moving within the community.
You can be treated as an employed or self employed person if you pay, or have previously paid, or ought to pay national insurance contributions.
Prior to 1 June 1992 DLA, AA and CA were exportable, but after that date these were then classed as special non-contributory benefits, which were no longer exportable under regulation 1408/71. However recent case law has caused the Commission of the European Communities to review special non-contributory benefits classifications. As a result it issued amending regulations which removed DLA, AA and CA from the list of special non-contributory benefits.
The United Kingdom government objected to this, and requested that these benefits be added to the list once more. The Council of the European Union agreed to this. The Commission of the European Communities disagreed with this and appealed to the European Court of Justice.
The court held that DLA care component, AA and CA were not special non-contributory benefits and so were exportable under EC regulation 1408/71. DLA mobility component is still classed as a special non-contributory benefit and so is not exportable.
You can find out more information on claiming disability benefits if you live in another European country and taking disability benefits to other European countries on the DirectGov website at www.direct.gov.uk.
You can also find out more information about exporting DLA care component, AA and CA by contacting the Pensions, Disability and Carers Service exportability team:
Exportability Co-ordinator
Room C216
Pension, Disability and Carers Service
Warbreck House
Warbreck Hill Road
Blackpool
FY2 0YE
Email: exportability.team@dwp.gsi.gov.uk .
The following decisions CDLA/496/2006, CDLA/2002/2006 and CDLA/2106/2006 [2009] UKUT 286 AAC have been referred by the upper tribunal to the court of justice of the european union for a preliminary ruling on whether DLA mobility component is an 'exportable' benefit.
The questions referred for a preliminary ruling are;
"1. (a) In relation to periods to which the form of Council Regulation (EEC) No 1408/71 of 14 June 1971 in force immediately before 5 May 2005 applies, is the mobility component of disability living allowance under sections 71 to 76 of the Social Security Contributions and Benefits Act 1992 capable of being categorised separately from disability living allowance as a whole as either a social security benefit within Article 4(1) of the Regulation or a special non-contributory benefit within Article 4(2a) or otherwise?
(b) If the answer to (a) is yes, what is the proper category?
(c) If the answer to (a) is no, what is the proper category for disability living allowance?
(d) If the answer to (b) or (c) is categorisation as a social security benefit, is the benefit in question an sickness benefit within Article 4(1)(a) or an invalidity benefit within Article 4(1)(b)?
(e) Are the answers to any of the above questions affected by the temporal limitation in point 2 of the Court's ruling in Commission of the European Communities v European Parliament and Council of the European Union, Case C-299/05, [2007] ECR I-8695?
2. (a) In relation to periods to which the form of Council Regulation (EEC) No 1408/71 of 14 June 1971 in force from 5 May 2005 by virtue of Council Regulation (EC) No 647/2005 of 13 April 2005 applies, is the mobility component of disability living allowance under sections 71 to 76 of the Social Security Contributions and Benefits Act 1992 capable of being categorised separately from disability living allowance as a whole as either a social security benefit within Article 4(1) of the Regulation or a special non-contributory benefit within Article 4(2a) or otherwise?
(b) If the answer to (a) is yes, what is the proper category?
(c) If the answer to (a) is no, what is the proper category for disability living allowance?
(d) If the answer to (b) or (c) is categorisation as a social security benefit, is the benefit in question an sickness benefit within Article 4(1)(a) or an invalidity benefit within Article 4(1)(b)?
3. If the answers to the previous questions produce the outcome that mobility component is properly to be categorised as a special non-contributory benefit, is any other rule or principle of EC law relevant to the question of whether the United Kingdom is entitled to rely on any of the residence and presence conditions in regulation 2(1)(a) of the Social Security (Disability Living Allowance) Regulations 1991 in circumstances like those of the present cases?"
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